EEOC Enforcement Guidance on the ADA and Psychiatric Disability

In 1997, the Equal Employment Opportunity Commission (EEOC) released a policy guidance concerning application of the Americans with Disabilities Act to individuals with psychiatric disabilities. The comprehensive document answers some of the most common questions about psychiatric disabilities and the ADA.

It discusses how to determine whether a condition is covered under ADA, disclosure of a disability, requesting reasonable accommodations, examples of reasonable accommodations, when an employer can discipline a worker for misconduct resulting from a disability, direct threat, and professional licensing.

A guidance is an addition to the EEOC compliance manual and is used by the agency’s investigators in determining whether a complainant’s ADA rights have been violated. Although guidance issued by the EEOC are not regulations, they inform courts about the official position of the agency responsible for ADA enforcement in the employment area.

Several of the EEOC positions are especially important to consumers and advocates:

The guidance expands the list of major life activities to include those relevant to psychiatric disability. An employee wishing to establish that he or she has a covered disability must show substantial limitation of a major life activity. The guidance includes such activities as “thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, or working. Sleeping is also a major life activity…” This expansion should enable people with psychiatric disabilities to get past the first hurdle under the ADA: whether the employee has a covered disability.

The EEOC reiterates its position that the corrective effects of medication should not be considered when deciding whether an impairment substantially limits a major life activity. Several courts have disagreed with this position, but the EEOC has held firm. This is very important to consumers taking medications that alleviate their symptoms, but does not affect their need for an accommodation.

The agency affirms that “episodic conditions may constitute substantially limiting impairments if they are substantially limiting when active or have a high likelihood of recurrence in substantially limiting forms.” The guidance mentions bipolar disorder, major depression, and schizophrenia as examples of disabilities that may be episodic over the course of months or years. Accordingly, even if a disability is not currently active, an employee who needs an accommodation to continue controlling symptoms can be covered by the ADA.

The guidance again notes that an employer cannot ask a job applicant whether he or she has a disability or needs a reasonable accommodation. This is a particularly useful protection for people with disabilities that are not visible.

The Commission clarifies that an employer requesting information from an employee seeking an accommodation may only ask for information that is necessary to verify the existence of a disability and the need for accommodation. This provision means an employee or applicant may refuse broad employer requests, such as for all of a consumer’s therapy notes. However, employees should be aware that the guidance allows the employer to insist that the employee see a professional of the employer’s choice if the initial information given the employer is insufficient to prove that the employee has a disability and needs an accommodation.

The EEOC also takes the position that an employee can use plain English to request an accommodation and need not use the specific terms “accommodation” and “.” This should make it easier for employees who are not familiar with the legal terms.

The guidance gives several examples of potential accommodations, including modifications to work schedules or policies, physical changes to the workplace, adjusting supervisory methods, providing a job coach, and reassignment to a different position. The guidance also makes clear that medication monitoring is not a reasonable accommodation, so employees cannot be forced to take medication under the employer’s directive.

Importantly, the guidance provides that an employer can only discipline an employee with a disability for misconduct related to the disability if the workplace standard is job-related to the employee’s position and consistent with business necessity. If the misconduct has no relation to the person’s ability to do the job in question, the employee cannot be disciplined.
The full text of the guidance is available on the EEOC’s web site at www.eeoc.gov or from the Commission’s publication distribution center (1-800-669-3362). Contact The Bazelon Center for Mental Health Law at www.bazelon.org/bazelon/ada.html for recent case examples of the ADA and psychiatric disability and other information.

Note: The information contained in these pages is for educational purposes only, and is not legal advice. Individuals should contact the appropriate legal resources for specific legal advice regarding their particular situations.

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The content, development, and maintenance of this website are supported in part under a grant with funding from the National Institute on Disability, Independent Living, and Rehabilitation Research, and from the Center for Mental Health Services Substance Abuse and Mental Health Services Administration, United States Department of Health and Human Services (NIDILRR grant 90RT5029). NIDILRR is a Center within the Administration for Community Living (ACL), Department of Health and Human Services (HHS). The contents of this website do not necessarily represent the policy of NIDILRR, ACL, HHS, or of SAMHSA and you should not assume endorsement by the Federal Government.